ANC MP Richard Dyantyi urged committee chair Bulelani Magwanishe to respond to Hlophe, indicating that the committee would proceed according to its set timelines.
The committee had earlier received a presentation from Loots outlining all the steps that the Hlophe matter had gone through since 2008.
She emphasised the May 2022 Johannesburg high court judgment by Judge Roland Sutherland which analysed all of Hlophe’s complaints and ruled that none of them was valid and dismissed them.
That judgment also explained the role of parliament, saying there was no provision in the constitution for the National Assembly to hold a “rehearing” of the complaint.
MPs said the issues raised by Hlophe in his letter had already been addressed by the Sutherland judgment. On that basis, the parliamentary process would continue to consider the JSC finding against him.
“I want to say upfront that the presentation based on the Sutherland judgment answers many of the issues raised in the letter,” said Dyantyi.
“I have not identified any gaps that we have that we might want to ask from the JSC and so on, I am satisfied about how that judgment responds to many of the issues raised in that letter.
“For context, the genesis of this matter — it started in 2008 and we are now in 2023. What that means is we no longer have any luxury for any further delays after so many years. We have got to be very precise in terms of the work that we must do,” he added.
The committee resolved to give Hlophe and Motata until November 15 to make written submissions on “extenuating circumstances” they would like parliament to consider before it concludes their matters.
When it began the impeachment process against the two judges last month, the committee resolved to note findings of the JSC as “legal fact”.
It then decided to invite them to make the written submissions.
Section 177 of the constitution provides for a judge to be removed from office only if the JSC finds the justice suffers from an incapacity, is grossly incompetent or guilty of gross misconduct.
The National Assembly would then call for that judge to be removed by a resolution with a supporting vote of at least two-thirds of its members. Thereafter, the president would remove the justice from office upon adoption of a resolution by parliament calling for such.
In response to the earlier call for submissions, Motata, through his lawyers, requested an extension to November 30 to collate documentary and other evidence in support of his representations.
The committee gave him until November 15.
Hlophe, through his lawyers, contested the committee’s noting of the JSC finding as “judicial fact”.
“That finding is still subject to a court challenge on appeal, in the same way that the premier of the Western Cape and Justice Kriegler’s FUL challenged the 2009 JSC finding which had exonerated Hlophe JP.
“It took premier (Alan Winde) and Justice Kriegler some three years to exhaust the court process and appeals; from the high court, supreme court of appeals, to the constitutional court before that matter could revert to the JSC in 2012.”
Hlophe objected to the view that the “merit issues” which underpin the JSC finding were “already settled”, saying these were still subject to appeal processes to the SCA and possibly the Constitutional Court.
“Given this situation, the consideration of the 2021 JSC decision by the National Assembly under the terms of section 177(1)(b) of the constitution is a matter which is not yet ripe. That there are still pending court processes challenging the section 177(1)(a) part of this process is indicative of the unripeness,” he said.
“In the meanwhile, the committee must, however, not turn a blind eye to the gravely serious issues raised in this letter. The committee is asked to act with speed to attend to the matters raised herein.
“Indeed, Hlophe JP would welcome a parliamentary inquiry into the serious issues highlighted herein concerning public statements made to unduly influence the workings of the JSC and frustrate the administration of justice. Such an enquiry would be in the public interest.”
TimesLIVE
Parliament to forge ahead with Hlophe, Motata impeachments
Image: Trevor Samson
Parliament’s justice portfolio committee will forge ahead with the process to impeach suspended Western Cape judge president John Hlophe and retired Gauteng judge Nkola Motata.
This is despite Hlophe’s assertion in a 183-page letter that the committee was jumping the gun as there were still matters pending in court. He also suggested that parliament should conduct an inquiry into the “serious issues” he raised concerning public statements made to unduly influence the working of the Judicial Services Commission [JSC] and frustrate the administration of justice.
MPs said there was no need to delay the matter any further, with parliament’s legal adviser, Dr Barbara Loots, saying the appeal process Hlophe is pursuing has no impact on the committee’s work.
“That process does not impact on what the committee is doing because there is no interdict. The committee is not concerned with that process, it is concerned with a JSC finding and absent a party going to court interdicting this committee, the committee is under a constitutional obligation to act in terms of section 177,” said Loots.
MPs agreed with the DA’s Glynnis Breytenbach expressing concern about further delays in the matter.
“I understand that parliament has not delayed unduly. But we need to get this done. Both of these judges have had plenty of time to set out extenuating circumstances ad nauseam,” she said.
MPs will be politicians, not lawyers, in deciding fate of judges
ANC MP Richard Dyantyi urged committee chair Bulelani Magwanishe to respond to Hlophe, indicating that the committee would proceed according to its set timelines.
The committee had earlier received a presentation from Loots outlining all the steps that the Hlophe matter had gone through since 2008.
She emphasised the May 2022 Johannesburg high court judgment by Judge Roland Sutherland which analysed all of Hlophe’s complaints and ruled that none of them was valid and dismissed them.
That judgment also explained the role of parliament, saying there was no provision in the constitution for the National Assembly to hold a “rehearing” of the complaint.
MPs said the issues raised by Hlophe in his letter had already been addressed by the Sutherland judgment. On that basis, the parliamentary process would continue to consider the JSC finding against him.
“I want to say upfront that the presentation based on the Sutherland judgment answers many of the issues raised in the letter,” said Dyantyi.
“I have not identified any gaps that we have that we might want to ask from the JSC and so on, I am satisfied about how that judgment responds to many of the issues raised in that letter.
“For context, the genesis of this matter — it started in 2008 and we are now in 2023. What that means is we no longer have any luxury for any further delays after so many years. We have got to be very precise in terms of the work that we must do,” he added.
The committee resolved to give Hlophe and Motata until November 15 to make written submissions on “extenuating circumstances” they would like parliament to consider before it concludes their matters.
When it began the impeachment process against the two judges last month, the committee resolved to note findings of the JSC as “legal fact”.
It then decided to invite them to make the written submissions.
Section 177 of the constitution provides for a judge to be removed from office only if the JSC finds the justice suffers from an incapacity, is grossly incompetent or guilty of gross misconduct.
The National Assembly would then call for that judge to be removed by a resolution with a supporting vote of at least two-thirds of its members. Thereafter, the president would remove the justice from office upon adoption of a resolution by parliament calling for such.
In response to the earlier call for submissions, Motata, through his lawyers, requested an extension to November 30 to collate documentary and other evidence in support of his representations.
The committee gave him until November 15.
Hlophe, through his lawyers, contested the committee’s noting of the JSC finding as “judicial fact”.
“That finding is still subject to a court challenge on appeal, in the same way that the premier of the Western Cape and Justice Kriegler’s FUL challenged the 2009 JSC finding which had exonerated Hlophe JP.
“It took premier (Alan Winde) and Justice Kriegler some three years to exhaust the court process and appeals; from the high court, supreme court of appeals, to the constitutional court before that matter could revert to the JSC in 2012.”
Hlophe objected to the view that the “merit issues” which underpin the JSC finding were “already settled”, saying these were still subject to appeal processes to the SCA and possibly the Constitutional Court.
“Given this situation, the consideration of the 2021 JSC decision by the National Assembly under the terms of section 177(1)(b) of the constitution is a matter which is not yet ripe. That there are still pending court processes challenging the section 177(1)(a) part of this process is indicative of the unripeness,” he said.
“In the meanwhile, the committee must, however, not turn a blind eye to the gravely serious issues raised in this letter. The committee is asked to act with speed to attend to the matters raised herein.
“Indeed, Hlophe JP would welcome a parliamentary inquiry into the serious issues highlighted herein concerning public statements made to unduly influence the workings of the JSC and frustrate the administration of justice. Such an enquiry would be in the public interest.”
TimesLIVE
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